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UPDATE: Malaysia: Contradictory statements over caning sentence

Sisters in Islam (SIS) of Malaysia has submitted an application for revision and stay of execution of the caning sentence passed on Madam Kartika. SIS is asking the court to revise the sentence on several grounds, reminding the Malaysian government of its obligations under international law, constitutional and legal issues, and sentencing guidelines. Kartika Sari Dewi Shukarno was sentenced by the Pahang Syariah Court to be lashed six times and fined RM 5000 as punishment for drinking beer with her husband in a hotel nightclub in Cherating (Pahang state) on 12 July 2007. The mother of two was charged under Section 136 of the Pahang Islamic and Malay Traditional Practices Enactment (Amendment) 1987. We have recently learned that the same judge has passed five other sentences on Muslim men and women for alcohol consumption.

In early August 2009, Women, Family and Community Development Minister Datuk Seri Shahrizat Abdul Jalil confirmed that the chief judge of a state Syariah appeals court had ordered the sentence to be deferred pending the review. “The overriding view was that the sentence meted out was too harsh and is not commensurate with the offence,” she said.

However, during the month of Ramadan, a contradictory statement on behalf of the Syariah court was issued. Its prosecution head, Datuk Abdul Rahim Jaafar, said the department would not announce when 32-year-old Kartika Sari Dewi Shukarno would be caned, scheduled for after Hari Raya, to avoid a "media circus". The department would only announce it after the punishment had been carried out. "There is no need to publicise when she [Kartika] will be caned. We might do it quietly and will not make an announcement to let the public know. If we do, it will be afterwards. We do not want the issue to be exploited and for foreigners especially the foreign media to accuse and label us and our laws as being cruel to women."

Kartika Sari Dewi Shukarnor has also been quoted as saying that she wanted the sentence to be carried out quickly, saying too many individuals, politicians, government organisations and non-governmental organisations had met her and her family lately.

Shanthi Dairium (former member of the CEDAW Committee – the UN Committee for the Elimination of All Forms of Discrimination Against Women and founder of International Women’s Rights Action Watch, Asia-Pacific [IWRAW-AP]) has pointed out to those concerned about Kartika's case:

"The fact that she [Kartika] does not want to appeal is not the main consideration. It is not only about her individual rights being violated and securing a treatment for her that protects her human rights…. The important issue here is the deterioration of human rights standards as applied by the State. If the caning takes place, a bad precedent is set. Furthermore if a person accepts a certain treatment that violates human rights and harm is done to her, human rights defenders cannot stand by and say it is her choice. Take the case of sati in India; there were also arguments that if a widow chooses to immolate herself then there should be no interference. We have to act against anything that will contribute to normative standards that go against human rights."

Amnesty International has repeated its call for Malaysia to stop using the penalty of caning altogether: "Caning is a form of cruel, inhuman and degrading punishment and is prohibited under international human rights law," said Sam Zarifi. "The Malaysian government should do all it can to stop this inhumane punishment being used in any circumstance."

Please continue to write to the Malaysian authorities, urging them to review the caning sentence passed on Madam Kartika and the five other men and women, in light of the fact that the penalty is unconstitutional, violates international law, and sets a dangerous precedent for violent punishment of alleged moral transgressions not only in Malaysia, but in the region as a whole.

Kartika Sari Dewi Shukarno was sentenced to six lashes and a fine of 5,000 ringgit ($1,400) for consuming alcohol. Shukarno, a 32-year-old model, pleaded guilty in the court in eastern Pahang state to a charge of drinking beer when Islamic authorities raided a hotel nightclub. Consuming alcohol is a religious offense in Malaysia only for Muslims, who make up nearly two-thirds of the population. Offenders are prosecuted in Shariah courts, which handle cases mainly related to family and moral issues for Muslims. Most offenders are fined, but the law also provides for a three-year prison term and caning. Shukarno was the only Muslim caught in the raid at the Pahang nightclub. Malaysian clubs and lounges typically serve alcohol but are not legally required to check if customers are Muslim before serving them, so the hotel nightclub operators were not charged with any offense.

The legal system in Malaysia is complex because the Malaysian state has accepted many of the inconsistencies of British colonial rule. There is in effect a two-track system. Non-Muslims (Malaysian and otherwise) are subject only to secular law. But Muslims (both Malaysian and otherwise) are subject to both secular law and shariah law. So Muslim Malaysians are subject to two sets of laws. So while Kartika can be caned under the shariah law, Malaysia's penal code prohibits caning of women. But the shariah law in Malaysia is under the jurisdiction of 13 separate states with their own interpretations. Only three states in Malaysia — Pahang, Perlis and Kelantan — impose caning for drinking alcohol. In the other 10 states it is punishable by only a fine.

Kartika caned would set a precedent that could subject the hundreds of thousands of Muslim Indonesian women working in Malaysia to the same punishment, at least in the three states where this particular interpretation of shariah law is in force. There are also many Muslim Singaporean women living in and visiting Malaysia, all of whom could suddenly be subject to this same law.

It has been reported by human rights organisations, according to Amnesty International, that undocumented migrants considered "illegals' in Malaysia are being punished through caning, by virtue of the penalties under the Immigration Act, and are in fact the primary victims of corporal punishment. The World Refugee Survey in 2005 placed Malaysia as one of the worst offenders of refugee rights, documenting cruel and inhumane treatment in Malaysia's prisons and detention camps. Often the punishment of caning, although discretionary, is handed down, as a deterrent. There are sets of demands now being put forward to the Malaysian government to stop caning as a form of torture altogether and to repeal the two sets of justice system. In 2006, The Malaysian Bar at its AGM passed a resolution declaring that the corporal punishment of whipping is cruel, inhumane and degrading and called for its abolishment.

'It is time for Malaysia to subscribe to Article 5 of the Universal Declaration of Human Rights, that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment” and reject corporal punishment altogether as a form of sentencing. We all have the ability to affect the consciousness of members of our family, community, nation and planet. The voices of those who support cruelty are loud, but the silent majority can make themselves heard.' (Renuka T. Balasubramaniam, member of the Human Rights Committee (HRC), Bar Council Malaysia)